State v Kurai [2008] PGNC 329; N3435 (19 August 2008)

N3435

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 721 0F 2000

THE STATE

V

DOMINIC KURAI

Kimbe: Cannings J
2008: 25 July,
14, 19 August

SENTENCE

CRIMINAL LAW – sentence – Criminal Code, Subdivision VI.1.F (obtaining property by false pretences: cheating) – Section 404(1) (obtaining goods or credit by false pretence or wilfully false promise) – sentence on plea of guilty – store goods worth K728.86 obtained by false pretences – sentence of 1 year.

A man pleaded guilty to obtaining goods from a store worth K728.86 by false pretences. He used the order book of his former employer without authority.

Held:

(1) The maximum penalty for an offence under Section 404(1) is five years imprisonment and a useful starting point for sentencing is the middle of the range: two and a half years imprisonment.

(2) A sentence of one year imprisonment was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Aaron Wai, CR 926/2005, 14.10.05
The State v Eddie Apuai, CR 1018/2005, 08.09.05
The State v Benson Raka, CR 447-450/2006, 17.08.06

Abbreviations

The following abbreviations appear in the judgment:

CR – Criminal
J – Justice
K – kina
LLG – Local-level Government
Ltd – Limited
NBPOL – New Britain Palm Oil Ltd
NCP – Niugini Civil and Petroleum Ltd
No – number
PNGLR – Papua New Guinea Law Reports
SCRA – Supreme Court Criminal Appeal
v – versus

SENTENCE

This was a judgment on sentence for obtaining goods by false pretences.

Counsel

F Popeu, for the State
T Gene & J Yapao, for the offender

19 August, 2008

1. CANNINGS J: The offender, Dominic Kurai, used to work for Niugini Civil and Petroleum Ltd in Kimbe. The company sacked him in the early part of 2000 and, being angered by that, he got hold of a company order book, went to the K-Mart department store in Kimbe, saw a shop assistant who knew him (and who did not realise that he had been sacked) and collected store goods worth K728.86.

2. Soon afterwards K-Mart asked NCP to pay for the order and only then was it discovered what the offender had done. He was charged with obtaining goods by false pretences with an intention to defraud, contrary to Section 404(1)(a) of the Criminal Code. He has pleaded guilty. Having satisfied myself that there is sufficient evidence of the elements of that offence I have convicted him and he now has to be sentenced.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He stated:

I did this because when the company terminated me they did not pay me my finish pay. I respect the court and point out that this is the first time I have appeared before any court. I apologise for what I have done. I will never do such a thing again. I have a family, including five children, to look after. I ask the court for mercy and for probation.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06).

6. I take into account his assertion that he had not been paid his finish pay when he was terminated by NCP. That is not a defence but it helps explain why the offender acted in the way he did. Also, during the course of the police investigation, the offender returned a pair of Stockman shoes worth K360.00 that he obtained with the order book, which is almost half of the value of the goods he obtained.

PRE-SENTENCE REPORT

7. A pre-sentence report prepared by the Kimbe branch of the Community Based Corrections Service confirms that Dominic Kurai, from Laiagam, Enga Province, is happily married with five children. He moved to Kimbe 14 years ago and has no plans to leave West New Britain. He lives with his family at the Section 10 settlement. He was educated to grade 6 at Wabag.

8. He was employed as a security guard in Kimbe for several years before taking up a job with NCP. He was employed there for a year before being sacked (he says he was sacked because the boss’s camera was stolen; the company thought he stole it but he still denies this). He is now unemployed and helps his wife sell second hand clothing to provide a source of income for the family. The Ward 4 Councillor for Kimbe Urban LLG, John Robin, says that Dominic Kurai is not a trouble-maker. He is a hard working and well regarded member of the local community. The report concludes that he is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Yapao highlighted the guilty plea and the relatively small amount of money that was involved. It was a one-off incident and the offender’s first offence. A sentence of six months, fully suspended would be appropriate.

SUBMISSIONS BY THE STATE

10. Mr Popeu agreed that, in relative terms, this was not a serious case. He did not press for a custodial sentence.

DECISION MAKING PROCESS

11. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. The maximum penalty under Section 404(1)(a) is five years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

13. As the range of available sentences is small, it is appropriate to use as a starting point the middle of the range: two and a half years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

14. I have dealt with three cases in recent times, where the offenders had dishonestly obtained goods or money of a similar value to what is involved in the present case. These offenders were convicted of forging and uttering, a different offence to obtaining goods by false pretences, but the nature of the offences and the facts of each case are similar to the present case, so they provide useful benchmarks. The cases are:

• The State v Eddie Apuai, CR 1018/2005, 08.09.05, Kimbe: a NBPOL employee in charge of tyres and other materials at a company workshop falsified documents and obtained four tyres and gave them to a friend – he was sentenced to six months imprisonment, which was suspended on various conditions.
  
• The State v Aaron Wai, CR 926/2005, 14.10.05, Kimbe: a stores clerk employed by NBPOL used falsified requisitions to obtain materials, which were later recovered and returned to the company – he was sentenced to 12 months imprisonment, which was suspended on various conditions.
  
• The State v Benson Raka, CR 447-450/2006, 17.08.06, Buka: the deputy governor of a school board was convicted of two counts of forgery and two counts of uttering for forging the signature of an authorised signatory to the school’s bank account and obtaining K2,000.00, most of which he repaid – he was sentenced to 18 months imprisonment, which was suspended on various conditions.
  

STEP 4: WHAT IS THE HEAD SENTENCE?

15. Mitigating factors are:

• it was a one-off transaction;
• the offence was committed ‘in the heat of passion’, while the offender was still angry over his sacking and had problems getting his finish pay;
• has returned almost half of the value of the goods fraudulently obtained;
• a relatively small amount of money was involved;
• pleaded guilty;
• remorse;
• first-time offender;
• good reputation in the local community.
  

16. The only significant aggravating factor is:

• he failed to answer bail and was on the bench warrant list for six years before being apprehended.
  

17. After weighing all these factors and comparing this case with other similar cases I impose a head sentence of one year imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one month, two weeks, three days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. In view of the favourable pre-sentence report, the relatively small amount of money involved, and the fact that the offender has already spent some time in custody (in remand) I will suspend the rest of the sentence, on the following conditions:

(a) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(b) must not leave the Province in which he resides without the written approval of the National Court;

(c) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;

(d) must attend his local Church every weekend for service and worship and submit to counselling;

(e) must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;

(f) must not consume alcohol or drugs;

(g) must keep the peace and be of good behaviour;

(h) must have a satisfactory probation report submitted to the National Court Registry every three months after the date of sentence;

(i) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

20. Dominic Kurai, having been convicted of one count of obtaining goods by false pretences with an intention to defraud, contrary to Section 404(1)(a) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	1 year
Pre-sentence period to be deducted	1 month, 2 weeks, 3 days
Resultant length of sentence to be served	10 months, 1 week, 4 days
Amount of sentence suspended	10 months, 1 week, 4 days
Time to be served in custody	Nil, subject to conditions of suspended sentence

Sentenced accordingly.

___________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender